Judges reject flood claims; Neversink suit blamed NYC

NEVERSINK — A nearly seven- year lawsuit blaming New York City for devastating floods along the Neversink River in 2005 and the destruction of an endangered mussel was again defeated in federal court.

Leonard Sparks

NEVERSINK — A nearly seven- year lawsuit blaming New York City for devastating floods along the Neversink River in 2005 and the destruction of an endangered mussel was again defeated in federal court.

A three-judge panel for the 2nd U.S. Circuit Court of Appeals has granted summary judgment to the city.

The judges' order on Sept. 20 upheld a District Court ruling rejecting property-owners' claims that the city's Department of Environmental Protection released a "torrent" of water from the Neversink Dam and pushed the river over its banks.

The panel also ruled that the plaintiffs did not have standing to sue the city for violating the Endangered Species Act by failing to protect the Neversink's population of dwarf wedge mussels.

"My heart goes out to all the victims here," said Village of Florida attorney Steven Spiegel, who handled the case. "These are people whose lives were devastated."

One woman was killed, more than 1,000 were left homeless and an estimated $80 million in damage occurred in the region when heavy rains and snowmelt combined to send rivers and creeks over their banks in April 2005.

Port Jervis resident Virginia Leith arrived home from dinner to find firefighters blocking access to three properties she owned along the Neversink. All were destroyed.

"I was wiped out," she said.

Leith joined owners of more than 140 properties in Orange and Sullivan counties who sued the city in January 2006.

At least one month before the flooding, the plaintiffs said, the city closed for repairs the aqueduct that normally carries water from the Neversink reservoir to the Rondout reservoir.

The closure eliminated an option for drawing down the Neversink as the reservoir filled with water from the spring melt and then swelled with water from the April storm, the original suit said.

"They allowed it (the reservoir) to continue to fill," Spiegel said.

As rains pounded the area between April 2 and April 4, the city opened the dam's release valves and sent a "torrent" of water down the Neversink River, the plaintiffs said.

But the court absolved the city of negligence, citing a 1951 case, Iodice v. State. That case found that the "dam owner is not liable for downstream damage as long as it does not increase the flow of water from the dam beyond its natural flow," according to the decision.

"The court's decision clarified the nature and extent of the city's obligations to downstream residents under flooding conditions, while recognizing that the primary purpose of the city's reservoirs is to ensure a reliable water supply," said Norman Corenthal, senior counsel for the city's law department.

Spiegel called the decision "very disturbing" and claimed the judges failed to address several distinctions between his case and Iodice.

He is also considering asking the U.S. Supreme Court to review the case.